OVERSEAS JURISDICTION ADVISORY COMMITTEE Section 1151, Public Law 104-106 Report to The Secretary of Defense The Attorney General The Congress of the United States U. S. Department of Justice Office of the Deputy Attorney General Executive Office for National Security Director Washington D.C. 20530 May 15, 1997 MEMORANDUM TO: Andrew Fois Assistant Attorney General for Legislative Affairs Mark M. Richard Deputy Assistant Attorney General FROM: Daniel S. Seikaly, Director Executive Office for National Security SUBJECT: Report of the DOJ-DOD Overseas Jurisdiction Advisory Committee Pursuant to section 1151 of the National Defense Authorization Act for Fiscal Year 1996, the Secretary of Defense and the Attorney General established an advisory committee "to review and make recommendations concerning the appropriate forum for criminal jurisdiction over civilians accompanying the Armed Forces in the field outside the United States in time of armed conflict." The committee was to have submitted its report to the Secretary of Defense and the Attorney General by December 15, 1996, and they, in turn, were to have jointly transmitted the report to Congress by January 15, 1997. On April 18, 1997, Brigadier General John Cooke, the chair of the committee, forwarded copies of the enclosed report to the Secretary and the Attorney General. I have drafted the enclosed letter of transmittal from the Acting Deputy Attorney General by which he would send the report to the Speaker of the House and the President of the Senate. We have reviewed the report and believe it raises several issues that warrant further study, in particular: (1) the definition of "contingency operation" under the first proposed legislative change may be too restrictive and might pose equal protection concerns; (2) an issue might exist regarding the scope of proposed court-martial jurisdiction over certain contractors, i.e., does a subcontractor fall within the definition of "employee of DoD contractor"; and (3) the authority of DOD personnel to deliver civilian persons to law enforcement authorities of a foreign country in the absence of an actual status of forces agreement. These issues -- and others -- must be resolved before DOJ can endorse the committee's recommendations. The letter of transmittal, therefore, is similar to one proposed by the DOD General Counsel's office: a letter that forwards the report, but clearly states that the Department does not endorse it. Please review the report and the proposed transmittal document. As the report is already several months past due, time is of the essence. I intend to forward the transmittal letter to the Acting Deputy Attorney General for his signature on Friday, May 23, and will assume you have no comments or recommendations if I do not receive any from you by that time. Enclosures cc: Executive Secretary (Ms. Zier), ref: Folder No. 308444 2 DEPARTMENT OF DEFENSE OFFICE OF GENERAL COUNSEL 1600 DEFENSE PENTAGON WASHINGTON, DC 20301-1600 April 18, 1997 The Honorable William S. Cohen Secretary of Defense Washington, D.C. 20301 Dear Mr. Secretary: We are pleased to submit the attached report of the Overseas Jurisdiction Advisory Committee. This committee, which was jointly appointed by Secretary Perry and the Attorney General pursuant to section 1151 of the National Defense Authorization Act for Fiscal Year 1996, has reviewed and made recommendations concerning criminal jurisdiction over civilians accompanying the armed forces outside the United States. This report reflects a year of work. Ably assisted by a working group of military lawyers, we have thoroughly researched the relevant legal issues and gathered a large body of data to support our findings and recommendations. The product of our efforts is a report that we believe will guide the Congress to the best resolution of this difficult and longstanding issue. Very Respectfully, John S. Cooke Brigadier General, JA,. U.S. Army Advisory Committee Chair John F. De Pue Florence W. Madden Senior Attorney Deputy General Counsel Department of Justice Department of the Air Force Robert E. Reed Richard B. Schiff Colonel, U.S. Air Force Captain, JAGC, U.S. Navy David P. Stewart Charles E. Trant Assistant Legal Adviser Colonel, JA, U.S. Army Department of State DEPARTMENT OF DEFENSE OFFICE OF GENERAL COUNSEL 1600 DEFENSE PENTAGON WASHINGTON, DC 20301-1600 April 18, 1997 The Honorable Janet Reno Attorney General of the United States Washington, D.C. 20530 Dear Attorney General Reno: We are pleased to submit the attached report of the Overseas Jurisdiction Advisory Committee. This committee, which was jointly appointed by you and Secretary of Defense Perry pursuant to section 1151 of the National Defense Authorization Act for Fiscal Year 199G, has reviewed and made recommendations concerning criminal jurisdiction over civilians accompanying the armed forces outside the United States. This report reflects a year of work. Ably assisted by a working group of military lawyers, we have thoroughly researched the relevant legal issues and gathered a large body of data to support our findings and recommendations. The product of our efforts is a report that we believe will guide the Congress to the best resolution of; this difficult and longstanding issue. Very Respectfully, John S. Cooke Brigadier General, JA, U.S. Army Advisory Committee Chair John F. De Pue Florence W. Madden Senior Attorney Deputy General Counsel Department of Justice Department of the Air Force Robert E. Reed Richard B. Schiff Colonel, U.S. Air Force Captain, JAGC, U.S. Navy David P. Stewart Charles E. Trant Assistant Legal Adviser Colonel, JA, U.S. Army Department of State REPORT OF THE ADVISORY COMMITTEE ON CRIMINAL LAW JURISDICTION OVER CIVILIANS ACCOMPANYING THE ARMED FORCES IN TIME OF ARMED CONFLICT (THE "OVERSEAS JURISDICTION ADVISORY COMMITTEE") Table of Contents Executive Summary . iv I. Introduction 1 II. Background 4 A. Article 2(a)(11), UCMJ, and the Supreme Court 5 B. Article 2(a)(10), UCMJ, and the Court of Military Appeals 6 C. Extraterritorial Effect of Federal Criminal Law ... 7 D. The "Jurisdictional Gaps" . 9 E. Past Legislative Proposals 9 III. Committee Activities . 11 IV. Historical Experiences and Current Practices Concerning Civilians Accompanying the Forces in the Field 12 A. Pre-UCMJ Experience 12 B. Vietnam 14 C. Recent Experience and Practice 15 1. Use, Function, and Training of Civilian Employees 15 2. Growth in the Use of DoD Civilian and Contractor Employees 21 i 3. Civilian Family Members, Employees, and Contractors Accompanying the Forces Overseas .. 23 4. Disciplinary Tools Currently Available 27 D. Experiences of Other U.S. Government Agencies and Foreign Governments 2 9 1. U.S. Department of Justice and Department of State 29 2 . United Kingdom and Canada 30 V. Committee Findings 33 A. Contingency Operations 33 B. DoD Civilian Family Members Stationed Overseas .... 39 C. Alternatives to Criminal Jurisdiction 44 1. Available Remedies 44 2. Adequacy of Remedies 45 D. The Need for Legislation 46 1. Contingency Operations 46 2. Peacetime Settings 48 VI. Committee Recommendations 4 9 A. Court-Martial Jurisdiction: Contingency Operations 50 1. Constitutionality of New Article 2(a)(13) 54 2. Policy Concerns "57 B. Federal Jurisdiction: Peacetime Settings 58 VII . Conclusion 64 ii Appendices 1. Section 1151, National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186 (1996). 2. Memorandum from Dept. of Defense General Counsel to Members, Overseas Jurisdiction Advisory Comm. (Charter), May 14, 1996 3. Draft bill. iii REPORT OF THE ADVISORY COMMITTEE ON CRIMINAL LAW JURISDICTION OVER CIVILIANS ACCOMPANYING THE ARMED FORCES IN TIME OF ARMED CONFLICT (THE "OVERSEAS JURISDICTION ADVISORY COMMITTEE") Executive Summary The Overseas Jurisdiction Advisory Committee was appointed by the Secretary of Defense and the Attorney General, pursuant to Section 1151, National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186 (1996). The committee's duties were to: review historical experiences and current practices concerning the use, training, discipline, and functions of civilians accompanying the Armed Forces in the field; develop specific recommendations concerning the advisability and feasibility of establishing United States criminal jurisdiction over civilians accompanying the armed forces in the field outside the United States during time of armed conflict not involving a war declared by Congress; and develop other recommendations as the committee considered appropriate. The committee conducted extensive research and gathered information and opinions from within the Department of Defense, including each Service and each of the Combatant Commands with overseas areas of responsibility. The committee also gathered information from the Department of Justice, the Department of State, and from legal authorities in the United Kingdom and Canada. The committee found that two jurisdictional "gaps" currently exist with respect to civilians accompanying the armed forces overseas. First, civilians accompanying the armed forces in the field during military operations overseas, not involving a war declared by Congress, are not subject to the criminal jurisdiction of the United States for many crimes that they might commit. The committee found that this gap carries the substantial potential for serious damage to the success of military operations and the safety of United States or allied forces. With increasing reliance on DoD civilian employees and contractors to carry out mission essential functions as an integrated part of military iv operations, it is essential that the United States have the authority to deter offenses, and, if necessary, punish civilians who commit crimes in such an environment. Without such authority, the unsatisfactory alternatives are trial before a foreign tribunal, if any is available, or no criminal punishment. To close this gap, the committee recommends extending court- martial jurisdiction to cover civilians accompanying the armed forces during contingency operations so designated by the Secretary of Defense, under 10 U.S.C. section 101(a) (13)(A), in places outside the United States specified by the Secretary of Defense.